An NHS Trust v The Patient [2014] EWCOP 54

The Facts
The Patient (“P”) was a 65 year old man. P has had lack of capacity throughout his life. P has learning difficulties and has autism.

For the last 40 years P has lived in a care home; he often spent two weeks at a time with his sister.

In the summer of 2014 P’s carers noticed a lump in the area of his right breast. He has been examined by doctors several time, they conclude that the lump is cancerous. P has not wanted surgery and therefore the diagnosis cannot be put beyond doubt until a biopsy is done.

Everyone involved in P’s care has tried to help him understand the seriousness of his condition; however, P believes that it is not cancer and that his illness can be controlled or cured by medication and that an operation is not necessary. P was ‘terrified’ of having an operation. His sister thought that this was due to his past having spent a lot of time on psychiatric hospitals and has come to dislike check ups.

The NHS Trust brought the issue before court. P’s sister, who is the only close relative, fully supports the application and was concerned that the operation had not happened.  P’s sister is not a party but is fully aware of them. The Official Solicitor (“OS”) who represents P also phoned his sister to make sure that she knew the proceedings were happening and the sister confirmed that she was aware.

Did P Lack Capacity?
The court appoint a Psychiatrist to assess whether or not P has the capacity to make the decision to consent to, or refuse, surgical removal of the tumor. The psychiatrist’s opinion was that P had two disabling conditions, first: learning disabilities “(mental retardation)” and second, autism. The psychiatrist came to the conclusion that P did not have capacity to make the decision regarding the surgery and assessed that surgery was the ‘minimum necessary force’ for P’s best interest. The psychiatrist assessed that P did not have an understanding of what breast cancer was or the seriousness of it; nor does he have the capacity to understand the available treatments options, nor what would happen if the cancer remained untreated.

The Judge found, without hesitation, that P lacked capacity to firstly, litigate the proceedings, and second, make decisions as to the appropriate treatment.

Is what is being proposed in P’s Best Interest?
The OS did not instruct a separate expert on this case for two reasons, firstly, the medical evidence from the NHS Trust was clear and frank, and second, that putting P through another assessment might have ‘greatly heightened the stress and distress” to P. The OS fully supported the NHS Trust’s application.

The NHS Trust provided evidence mainly from the Consultant Oncoplastic Breast Surgeon, although she was helped with views from her colleagues. The surgeon had prescribed P with Endocrine Tablets which for the time being would merely “hold off” the disease but was not a long term solution. This is why P thought that the tablets would cure or control the disease. In any event a further scan some months later showed that the tumor had become bigger. The extent of the removal will only become apparent during the course of the operation when the biopsy had been performed.

    The surgeon’s evidence was that if the operation happened in the near future there was approximately 85 to 90% chance that she could remove all the cancer. The surgeon provided approximate percentages as to the risks of the operation. The surgeon concluded that “..on balance, the risks of not having surgery far outweigh the risks of having surgery.” The surgeon gave evidence to the court of what would likely to happen to P if he did not have the treatment. There is a risk of the cancer spreading it the operation is put off anymore and each day the risk of spreading becomes greater.

    The Judge found that that the evidence speaks for itself and was overwhelming however he was concerned to the “sensitive, humane and proportionate management of the process”. P had already lashed out at the surgeon; and his sister stated that if he was warned he would go “berserk”. It is for these reasons that it was proposed that P would be restrained before surgery by way of chemical restraint and possible physical restraint. The plan was to give him sedative medication with his breakfast in order to transfer him to hospital and reduce the risk of him lashing out and injuring himself. Further that the hospital will treat him as soon as he comes to hospital, and provide him with an oral sedative. The usual checks relating to blood pressure and heart rate would not be taken until he was being put under the anesthetic. The Judge found that these measures were necessary for P to be taken to hospital without risk of harm and for the surgery to take place.

The Judge made the declarations that it was lawful and in P’s best interest to have the surgery as soon as reasonably possible, and that it was lawful for P to be sedated (including without his knowledge) and/or using physical restraint provided that minimum force was used and only as a last resort.

The Judge further added that P should be told in plain and sensitive terms before he is anaesthetised that he is going to be anaesthetised and that the operation is going to be performed. The Judge acknowledged P’s sister’s concerns about P going berserk but made this part of the order: that P must be informed even though he maybe mildly sedated, he must be told in clear and sensitive terms what is going to happen to him before it actually happens. 

The Press
In order to protect not only the identity of patient, the Judge made further reporting restrictions so as to prevent reporting until after the operation had taken place, so to avoid any possibility of P finding out the decision before and becoming distressed and stressed and potentially “sabotaging” the whole plan. This was on the condition that the NHS Trust would notify the Press Association within 72 hours of the operation taking place, or 72 hours after the decision not to operate. If there is a decision not to operate then the NHS Trust must make a statement explaining their decision and a summary of their reasons.

12th January 2015
The NHS Trust notified the Judge and the Press (earlier as per the order) that the P was told oh his operation beforehand and remained calm throughout and that the surgery was successfully carried out on 7th January 2015.